While it may be preferable for the legislature to permit the payment of general taxes without requiring the payment at the same time of drainage assessments, this court is not the legislature; and our proper and legitimate function is to determine solely and only whether the legislature has in fact required that such taxes and assessments be paid at the same time. The majority opinion seems to be based on the premise that since "our statute contains no prohibition restraining the tax collector from receiving the general taxes to the exclusion of the drainage district assessments," he must accept general taxes offered by the taxpayer without requiring the payment at the same time of drainage assessments, notwithstanding the express provision of the statute to the contrary. The premise of the majority should have no application in this case. The most favorable rule that can be invoked by the taxpayer is that, in the absence of a statute to the contrary, a taxpayer may pay one tax against his land and refuse to pay another tax separately entered against it. In this state the statute is "to the contrary." The legislature has enacted that drainageassessments "shall be added to the general taxes of such landowners and collected therewith" (C. S., sec. 4552); and theamount of such assessments shall be filed with the auditor whoshall enter the same on the tax-rolls of his office, "asprovided by law for the entry of other taxes, against the landof each of said persons . . . . and shall be collected in thesame manner as other taxes . . . ., which amount shall fall dueat the time of the falling due of general taxes, and . . . .shall be added . . . . to the general taxes of said person . .. . upon the assessment-rolls in his said office, and collectedtherewith." (C. S., see. 4527.) *Page 294
Under these and other provisions of the statute, drainage assessments must be entered on the real property assessment-roll, all taxes on such roll must be added together and all or half of the total must be paid prior to the fourth Monday of December. The collector has no discretion other than to accept payment of either all or one-half of the total of taxes and assessments on the real property assessment-roll (C. S., sec. 3234). The legislature was within its unquestioned power in providing the manner and time for assessing, levying and paying both general taxes and drainage assessments; and the distinction between taxes and assessments is of no consequence whatever, in this connection, other than to confuse the issue. (Thomas v. City of Missoula, 70 Mont. 478, 226 P. 213.)
The authorities relied on by the majority are of little consequence. They are from other states and were based on statutes and facts materially different from those confronting us. This is especially true of the cited decisions from North Dakota. In this case there is no suggestion that the drainage assessment is illegal and its payment is in no manner contested. The Oregon case is on the theory that a taxpayer could pay his legal taxes and contest a void road tax. The second Arkansas case followed the first which recognized one's right to pay legal taxes while contesting an alleged illegal assessment. In the Colorado cases sufficient levies had been made to pay certain irrigation district warrants, but a number of delinquencies had occurred and it was sought to require a higher levy to make up for the delinquencies. The two cases together held that this could not be done and permitted the payment of general taxes without paying the irrigation taxes.
The United States circuit court of appeals, in a well-considered opinion, reached a different conclusion from that arrived at by the Colorado court in cases cited in the majority opinion. It discusses the question fully and is contrary to the majority opinion. (Moore v. Gas Securities Co., 278 Fed. 111. See, also, opinion by Judge Brewer in Julien v.Ainsworth, 27 Kan. (31 Pac. St.) 446; 37 Cyc. *Page 295 1164; 2 Cooley on Taxation, 3d ed., 806; and Thomas v. City ofMissoula, supra.)
The action of the majority amounts to judicial legislation, pure and simple; and the decision, in effect, sets aside laws enacted by the legislature in the exercise of that body's unquestioned power.
Taylor, J., concurs.